1 See Tenn. Code Ann. § 39-13-527.

2 See Tenn. Code Ann. § 39-13-505. 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE August 2000 Session

STATE OF TENNESSEE v. RICHAR D EUGENE TRIVETTE

Appeal from the Criminal Court for Sullivan County No. S42,187 Phyllis H. Miller, Judge

No. E1999-00944-CCA-R3-CD October 4, 2000

The Defendant was convicted of two counts of sexual battery. His plea ag reement provided for concurrent

sentences of two years for his convictions, with the manner of service of the sentences to be determined

by the trial judge. The trial judge o rdered that the D

efendant serve

280 days of h

is sentences in the county jail, with the balance to be served on intensive probation. On appeal, the Defendant

argu es t hat the tri al j udge erre d by o rder ing h im t o se rve 2 80 d ays in jail. We modify the sentences impose

d by the tria

l court.

Tenn. R. App. 3 Appeal; J udgment of the Crim

inal Court Modified.

D AVID H. W ELLES , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and R OBERT W. W EDEMEYER , JJ., joined.
Richard A. Spivey, Kingsport, Tennessee, for the appellant, Richard Eug ene Trivette.

Paul G. Summers, A t torney Gen eral and Reporte

r; R. Stephen Jobe, As sistant Attorney General; Greeley Wells, District Attor

ney Gener

al; and Greg Newman, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

The Defendant was indicted for two counts of sexual battery by an authority figure, each being a Cl ass C fe lon y. 1 Pursuant to a plea agreement, he pleaded guilty to one count of the lesser includedoffense of sexual battery and entered a plea of nolo contendereto another count of sexual bat ter y, each off ens e bei ng a C las s E f elo ny. 2 He was to receive concurrent sentences of two ye ars for each conviction

as a Range I standard offender. The manner of service of the se ntence was left to the discretion of the trial judge, with the understanding that the Defendant would seek probation-2-

or other alternativesentencing options. Following a sentencing hearing, the trial judge ordered that the Defendant serve 280 days in the county jail, with the balance o f the sentence to be served on intensive probation. On appeal, the Defendant argues that the trial judge erred

by ordering

him to

serve 280 days in jail. He argues that he should have received e ither total probation or a lesser amount of time in jai

l.

When an accused challenges the length, range, or manner of service of a sentence, this Court has a duty to conduct a de novo review of the sentence witha presumption that the determinations made by the trial court are correct. Tenn. Code Ann. § 40-35-401(d) . This pr esumption i s “condition e d upon the affirmative showing in the record that the trial court considered the sentencing principles and all

relevant facts and circumstances.” State v. Ashby , 823 S.W.2d 166, 169 (Tenn. 1991).

When conducting a de novo review of a sentence, this Court must consider: (a) the evidence, if any, received

at the trial and sentencing hearing; (b) the presentence report; (c) the principles of sentencing and arguments a s to sentencing a

lternatives; (

d) th e nature and characteristics of the criminal conduct involved; (e) any statutory mitiga ting or enhancement factors ; (f ) any statement made by the defe

ndant regardi

ng sentencing ; and (g) the pote ntial or lack of potential for rehabilitation or treatment. State v. Thomas , 755 S.W.2d 838, 844 (Tenn. Crim. App. 1988); Tenn. Code Ann. §§ 40-35-102, -103, -210.

If our review reflects that the trial court followed the statutory sentencing procedure, that the court imposed a lawful sentence after having given due consideration and prop er weight to the factors and principles set out under the sentencing law, and that the trial court’s findings of fact are adequately

supported by the record , then w e may not modify the sentence eve n if we would have preferred a different result. State v. Fletcher , 805 S.W.2d 785, 789 (Tenn. Crim. App. 1991).

A defendant who “is an especially mitigated or standard off ender convictedof a Class C, D

or E felony is presumed to be a favorable

candidate for alternative sentencing options in the absence of evidence to the contrary.” Tenn.Code Ann. § 40-35-102(6). Our sentencing law also provides that “convicted felons committing themost severe offenses, possessing criminal histories evincing

a clear disregard for t

he laws a

nd morals of society, and evincing failure of past efforts a t rehabilitation shall be givenfirst priority regarding sentencing involving incarceration.” Id. § 40-35- 1 02(5). Th us, a defendant sentenced to eight years or less who is not an of fender for whom incarceration

is a priority is

presumed eligible for alternative sentencing unless sufficient evidence rebuts the presumption. However, the act does not provide that all offenders who meet the criteria

are entitled to such relief; rathe r, it requires that sentencing issues be determined by the facts a nd circumstances presented in each case. See State v. Taylor
, 744 S.W.2d 919, 922 (Tenn. Crim. App. 1987) (cit ing State v. Moss , 727 S.W.2d 228, 235 (Tenn. 1986)).

Add iti ona lly, the principles of sentencing reflect that the sentence should be no greater than that deserved for the

offense committe

d and should

be the least severe measure necessary to achieve the purposes for which the sentence is imposed. Tenn. Code Ann. § 40-35-103(3)-(4). The court-3-

should also consider the potential for rehabilitation or treatment of the defendant in determining the sentence alternative. Id. § 40-35-103(5).

A transcript of the guilty plea proceeding is not contained in the record. We there fore glean the facts from the transcript of the sentencing hearing, along with the presentence report and other information contained in the record. The victim was the thirteen-year-old da ughter of the Defendant's first cousin. The D efendant h

a d known the victim all of her life. In the presentence report, the Defendant stated that he and the victim's father were “more like brothers than cousins.” The Defendant's family and the victim's family attended church together. Acco rd ing to the presentencereport, the Defendant stated that he was “privileged to lead [the victim] to Christ.” One of the sexual battery offenses was based on the allegation that

the Defendant placed his hand inside the victim's shirt

and fondled her breast. The other sexual batte

ry offense was based on a se

parate incident in which the Defendant was alleged to have placed his hand inside the victim's clothing on her genital area. Information in the presentence repor treflectsthat the victim reported that the Defendant penetrated her vagina with his finger. The Defe ndant denied any penetration.

At the time of

sente ncing, the Defendant was thirty-seven y ears old and married. He had been married three times previously and had two children. He has a hi gh school education and a history of steady employment. He was convic ted of robbery

with the use o f a firearm in B ristol, Vi rginia in 1 985, for which he apparently received an eff ective sentence of five years in the pen ite nti ary. While he wa s serving th is sentenc e, he was char ged with pos sessing a contro lled substance while serving time on a felony charge, which w as reduced to simple possession of a controlledsubstance to which he pleaded guilty and received a twelve-month jail sentence. At the sentencing hearing, the Defendant stated that he was ordered to pay restitution in connection with his 1985 robbery

conviction. He stated that his parole on that conviction had been extended to allow him to continue to pay restitution. He acknowledged that he had not satisfied his obligation to make restitution and that he did not know whether he had been discharged from parole.

The Defe ndant e xpressed his remorse concerning his actions with the victim. While he admitted that he had place d his hand between

the victim's le

gs on her genital area, he denied the separate incident involving his fondling the victim 's breast. He denied that he penetrat ed the vict im's vagina with his fi nger. The Defe ndant's pas tor, the Def endant's step-father, and the Defendant's wife all testified in support of the Defendant at the sentencing hearing. The victim's step-mother testified that these events had

had an extremely

detrimental eff

ect upon the victim

. She stated that she had noticeda definite

adverse effect on the victim's grades in school, that the victim had lost inter

est in attending church, and that “[j]ust her whole attitude, her whole way of thinki n g has----it' s really affected her.”
At the conclusion of the sentencing hearing, the trial judge stated that she was considering the relevant senten

cing principles , along with the f acts and circumstances of the offense, including the legal presumpti

on that the Defen

dant was a favor

able candidate for alternative sentencing. She stated that she was requ ired to consider f

ull probation but noted that the burden was on the Defendant to establish that he was a suitable candidate for full probation.3 The Defendant assert s that the tr ial cour t shoul d have impose

d the mini

mum senten

ce for each Class E felony, which i s one year . It appears from the record, however, that the two concurrent two-year sentences were a part of t he Defenda nt's plea agreem ent.

-4- In sentencing the Defendan t, the tria l judge found and applied as an enhancement factor that the Defendant had

a previous history of criminal convictions or criminal behavior in addition to that necessary to establish the appropriate range. See Tenn. Code Ann. § 40 -35-114(1). This enhancement factor is clearly supported by the Defendant's convictions of robbery and possession of a controlled substance. The judge also found that the Defendant had a previous history of unwillingness

to comply with the conditions of a sentence involving release in the community. See id. § 40-35-114(8). The trial judge based this finding on the Defendant's admission that he had not complied with a previous order of restitution in connection with his parole from the robbery sentence in Virginia. The judge stated, however, that she was giving

this factor little w

eight. The judg

e also foun d as an enhancement factor that the Defendant had abused a position of private trust. See id. § 40-35-114(15). She stated that she was giving this enhancement factor more weight than the Defendant's previous history of criminal convic

tions. Although the Defendant argues that the trial court erred in applying this enhancement factor, we believe it is clearly supported by the re cord. The victim was the daughter of the Defendant's first cousin. He had known her all her life. She was al low edto spend the night in his home and in fa

ct was stayi

ng with him overni

ght when these offenses occurred. The record thus establishes that the Defendan t stood in a relationship to the victim that promoted confidence, reliability and faith. See State v. Kissinger , 922 S.W.2d 482, 488 (Tenn. 1996); State v. McKnight , 900 S.W.2d 36, 55 (Te nn. Cr im. App. 1994); State v. David Sharpe
, No. M1999-00262-C CA-R3- CD, 2000 WL 291452, at *2 (Tenn. Crim. App., Nashville, Mar. 21, 2000).

The Defendant argues that the trial court erred by failing to apply as

a mitigating factor that his conduct neither caused nor threa tened serio

us bodily injury. See Tenn. Code Ann. § 40-35- 113(1). In view of

the testimony presented concerning the detrimental effect the Defendant's actions have had on the victim's academic performance and attitude in general, we f ind no error with the trial court's refusal to apply

this factor in mitiga

tion. If applic

able, thisfactor would be e ntitled to little weight. See State v. Harold Leon Sutton, Jr. , No. 03C01 -9708-CC- 00344, 199 8 WL

126250, at *4 (Tenn. Crim. App., Knoxville, Mar. 23, 1998). While the trial judge noted the D efendant's sta

ble employment

history as a non-statutory mitigating fa ctor, see Tenn. Code Ann. § 40-35-113(13), she found that the enh

ancement facto

rs far outweig

hed any mitig

ating factors. 3

The Defendant arguesthat he is entitled t o fullprobation. In determining whether to grant probation, the judge must consider the nature and circumstances of the offense, the defendant’s criminal record, his background and social history, his present condition, including his phy sical and mental condition, the deterrent effect on other

criminal activity

, and the likelihood

that probation is in the best interests of both the public and the defendant. Stiller v. State , 516 S.W.2d 617, 620 (Tenn. 1974). The burde

n is on the Defenda

nt to show that the sente

nce he receive

d is improper and that he is entitled to probation. Ashby , 823 S.W.2d at 169.4 “[T]he trial court may look behind a p lea agreement and co nsider the true nature of the offense committed .”

State v. Latoy

a Anderson , No. 02C01-9707-CR-00251, 1998 WL 599527, at *3 (Tenn . Crim.

App., Jackson, Sept. 11, 1998) (citing State v. Ho llingsworth , 647 S.W .2d 937 , 939 (T enn. 198 3); State v. Biggs , 769 S.W.2d 506 , 507 (Tenn. Crim. App. 1988)).

-5- The trial co urt denied t he Defendant total prob ation, sta ting, I find t hat you have

not carried the b

urden of demonstr

ating to the cour

t that full probation would

serve the ends of justice or yourself or the community. I find that some period of

incarceration is necessary. I find that because of the seriousness of the offenses, be

cause of the fact

that I find that you are not truthful, and because of the fact that using common sense I accept the victim's version of the offense. I find it was actually a rape.

In evaluating the Defendant's veracity a nd credibility, the trial court found that the Defen dant's expressions of remorse were not sincere. It is clear from the record that the judge did not cre dit the Defendant's testimony concerning his version of the eve nts giving rise to these charges.

A defendant's lack of truthfulne ss or candor has lo ng been conside

red an appropri

ate consideration in denying

probation, beca

use this conduct re

flects poorly

on the Defendant's potential for rehabilitation. See State v. Doughty , 894 S.W.2d 301, 306 (Te nn. Crim. App. 1994); see also Statev. Neeley , 678 S.W.2d 48, 49 (Tenn. 1984). The nature and circumstances of the of fen ses, 4 together with the Defendant's record of previous convictions, als o reflect negatively on the Defendant's suitability for full probation. Bas ed on our review o f the record, we

are unable to conclude that the trial judge erred or abused her discretion in denying the Defendant full probation.

The State conce des that th e trial jud ge erred in orderi ng the Defenda

nt to serve 280 day

s in the county jail. We agree. The Defendant received two concurrent felony se ntences of two years in length. Our legislature has provided that inmates with felony sentence s of two (2) years or le

ss shall have the remainder of

their original se

ntence suspende

d upon reaching

their release e

ligibility date. Tenn. Code Ann. § 40-35-501(a)(3). (emphasis added) . The trial court s eemed to express its disagreement

with the mandatory release provision established by the legislature. In ordering the Defendant

to serve 280 day

s “day for d

ay” in the lo

cal jail, the trial judge stated, “ The reason is, is because I think the comm

unity deser

ves more protect

ion than the communi

ty would ge

t if I just deniedall forms of alternative sentencing, okay.” Nevertheless, this court has held that a trial court may not circumvent the

mandatory p

rovision of the sta

tuteby ordering a term of “split conf inement” in excess of the rele

asedate provided by Tennessee Code Annotated section 40-35-501(a)( 3). State

v. Charles Justin Osborne , No. 01C01-9806-CC -00246, 1999 WL 2

98220 at *7 (Tenn.

Crim. App., Nashville, May 12, 1999); State v. John W. Hill , No. 01C01-9802-CC-00072, 1999 WL 92948 at *1-2 (Tenn. Crim. App.,

Nashville, Feb. 2

5, 1999). The Def

endant's rele

aseeligibility

date is 30% of two years,

which equates to 2 19 days. We th erefore conc

lude that the Defe

ndant's sentenc

e must be modified to

provide that he se

rve 219 day

s in the county jail. In all other respects, the judgment of the trial court is affirmed.-6- ___________________________________ DAVID H. WELLES, JUDGE